Opinion
No. FST CV 08 5009438 S
October 6, 2011
MEMORANDUM OF DECISION AFTER TRIAL
I. Factual and Procedural Background
Gary Spezzano brought this lawsuit against the Town of Greenwich (Town) on the basis of an assignment of a claim against the Town for damage sustained to property located at what is known as 15 Neil Lane in Greenwich, Connecticut. The assignment was made by Rose Spezzano, the owner of the property and Gary Spezzano's mother. See Dkt Entry 112.00 (proposed amended complaint); Dkt Entry 112.86 (order allowing amendment). The claim arises out of a sewage back-up that took place on December 29, 2007 at or around Manhole No. 204 located at and under Neil Lane near the Spezzano property.
The amended complaint has two counts; the first count alleges that the Town was negligent, and the second count alleges that various sections of the Greenwich sewer system at or near 15 Neil Lane were defective and in such condition as to constitute a "public and private nuisance."
The case was tried to the court on three consecutive days beginning September 13, 2011, and this memorandum of decision constitutes the court's findings of fact and conclusions of law.
The lot known as 15 Neil Lane in December 2007 had two buildings. In the front was a two-family residence; in the rear was another building built in the late 1970's or early 1980 to be office space, converting an existing building formerly used as a garage. The converted rear building consisted of two offices a small kitchen and a lavatory located several steps above the other areas.
Gary Spezzano lived in one of the units of the two-family residence in 2007, although at the time of the incident he was on vacation in Florida. Linda Valente, Gary Spezzano's sister, lived in Florida at the time but was visiting her son at his home on Long Ridge Road in Stamford, Connecticut. At 10:00 am. on December 29, 2007 Valente visited the 15 Neil Lane premises and found nothing unusual. She returned at about 1:00 p.m. and encountered what can only be described as a horrific scene. As she described it, raw sewage, including feces and toilet paper, was gushing out of the toilet in the rear office building and flowing down the short stairway into the kitchen and office spaces. According to Valente's testimony and photographs of the scene, the sewage covered the floors and carpets to a level of perhaps three to five inches and splattered the walls. In the front building raw sewage was flowing out of the two washing machines located in the building's garage, getting onto the walls and some of it flowed into an outside drain. After calling a plumber and a drain maintenance service, the Town was notified about 3:00 p.m. and the Sewer Division of the Greenwich Department of Public Works dispatched a sewer collection system repairman, John Santasiero, to Neil Lane. Santasiero, who testified at trial, did not have a detailed recollection of the December 29, 2007 incident, but with the help of incident reports, he noted there was a sewer line stoppage at the locations of Manhole 234 which was heavy with grease. Over the course of three hours he used a high pressure water to clean the sewer line under Neil Lane eastward to Manholes 206 and 207, southwesterly to Manhole 205 and northerly on Westcott Court. The testimony of Valente also noted grease in the sewer line and pictures in evidence confirm this. Exhibits 24 and 25. Valente also testified there were other objects in Manhole 204 such as bicycle handlebars and car parts. The court has not discerned from the pictures exactly what was present but there is no doubt the sewer line was blocked.
There was one sewer line running from the Spezzano property into the main sewer line under Neil Lane. This line (called a lateral) served both the front (2-family residence) building and the back (office) building. The Spezzano lateral emptied into the main sewer approximately 15 feet upstream (eastward) from Manhole 204. Further eastward and upstream on Neil Lane sewer and Manholes 206 and 207 and the sewer line, and according to Richard Feminella, Sewer Division head, a McDonalds restaurant uses the same line at approximately Manhole 207.
While there was no direct testimony on this precise point, the evidence in the record makes it quite apparent that the sewer blockage at Manhole 204 caused raw sewage coming down the Neil Lane sewer from the east toward Manhole 204 to seek another outlet. That outlet was the Spezzano lateral just east of Manhole 204, and the sewage went into the lateral and flowed out the toilet in the rear building and washing machines in the front building. The damage was significant. Among other things, substantial repairs were required to the rear building the cost of which was claimed to be $42,000 and which the adjuster used by the Town estimated to be over $37,000. (The sewage apparently permeated the interior wall board necessitating extensive replacement.) Clean up costs and lost personal property amounted to almost $13,000; air testing and replacement of carpets and flooring came to $3,600. The plaintiff also claimed $23,190 for the installation of a new sewer and loss of rents from the rear building in excess of $60,000.
II. Discussion
Neither of the parties filed a memorandum of law in this case on the issue of liability, although counsel did make final arguments following the completion of evidence.
The plaintiff contends in his first count that the property damage incurred at 15 Neil Lane was caused by the sewage back-up in the Town-owned sewer line in front of the Spezzano property, and the back-up was due to the Town's negligence. The plaintiff relies heavily on the testimony of Santasiero. Noting that "heavy grease" was the major issue in the back-up (Exhibits 46, 50) Santasiero explicitly assumed that both the McDonalds restaurant and a Japanese restaurant at 1191 East Putnam Avenue named Baangs were hooked up to the same sewer main as 15 Neil Lane. He also testified that the Riverside shopping area was in the neighborhood and appeared to assume its tenants were also on the same line. He pointed to an inspection report (Exhibit 45) which refers to an inspection of McDonalds and Baangs by the Town Health Department on December 31, 2008 which noted the grease traps at both restaurants were "ok" although Baangs "has had issues in the past w/grease." See also Exhibit 53. He testified that the Riverside commercial area was a "high traffic area" and there was no regular scheduled maintenance plan for the area. At trial he answered in the negative the question of whether an 8-inch sewer pipe required regular maintenance. In an earlier deposition, however, he said that in areas which have commercial eating establishments the 8 inch lines need regular maintenance. Santasiero further testified that he did not know the source of the grease in the Neil Lane sewer line, nor how long it had been there before December 29, 2007. He testified he was not aware of prior sewer issues at Neil Lane.
Negligence claims against a municipality such as Greenwich are governed by General Statutes § 52-557n. Subsections (a)(l) and (2) state:
"(1) . . . a political subdivision of the state shall be liable for damages to person or property caused by: (A) the negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties.
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(2) . . . a political subdivision shall not be liable for damages to person or property caused by: . . . (B) negligent acts or omission which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
Section 52-557n is the product of a legislative determination to abandon the common law principle of municipal sovereign immunity and establish by law the circumstances in which a municipality may be liable for damages. Doe v. Petersen, 279 Conn. 607, 614 (2006). Under the statute the plaintiff must prove that a municipality or its agent was (1) negligent and (2) the negligent act or omission did not arise out of functions or work requiring the exercise of judgment or discretion.
Having reviewed and considered all the evidence at trial the court concludes that the plaintiff has not proven by a preponderance of the evidence that the Town was negligent. To establish negligence a plaintiff must prove he was owed a duty of care by the defendant, and that the duty was violated causing damages. In this case the plaintiff offered only the most nebulous and conclusory testimony of Santasiero about a need for scheduled maintenance, and even this was based on assumptions either not proven or proved otherwise. For instance there was no evidence that the sewage of tenants in general in the Riverside commercial area went to Manhole 204. Indeed the testimony of Ralph Feminella, Manager of the Waste Water division of the Town Sewer Department specifically testified that while McDonalds restaurant was on the Neil Lane line, Baangs restaurant, another restaurant named Valbella and the tenants of Riverside Center were not. This testimony was supported by a map of the area sewer lines. Exhibit 47.
The plaintiff also failed to offer any evidence as to what Santasiero meant by "scheduled maintenance." Assuming it means checking for sewer line blockages, no evidence was presented as to what other municipalities do in that regard and no published standards were offered as evidence of what a reasonable municipal duty of care might be. Additionally, there was no evidence offered that the Town knew of, or that there even existed, a history of problems in the Neil Lane sewer line, or that they acted any way other than promptly and efficiently when they learned of the blockage on December 29, 2007. Santasiero testified that he was on the scene during daylight and records show that the Town was notified about 3:00 p.m. In the absence of any delay and any evidence that the Town violated a duty of care, the plaintiff has not proven negligence.
The court also finds that the plaintiff has failed to prove that the claimed negligence occurred in the performance of a ministerial act, and the Town is therefore immune to suit under General Statutes § 52-557n(a)(2)(B). The claimed negligence is the failure of the Town to adequately inspect the Neil Lane sewer line at or near Manhole 204. Given the fact that Santasiero testified that he had no knowledge of prior untoward incidents on the Neil Lane sewer line and that he had no knowledge as to how long the grease had been in the manhole and sewer line, the court is forced to conclude that the decision of when, where and how to inspect the sewer lines in a municipality of over 60,000 population, with 185 miles of sewer lines and 25 employees in the Sewer Division, four of whom are allocated to repair work is quintessentially one made by the exercise of judgment and discretion. This conclusion is supported by Santasiero's testimony to the effect that he favored a regular system of sewer inspections in certain commercial "high traffic" areas which he did not, or was able to, define and to which he attached no time-frame for the word "regular" such as annually, weekly, etc. Therefore, even the concept of regular inspection, as he articulated it, left much to judgment and discretion.
"The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty [that] is to be performed in a prescribed manner without the exercise of judgment or discretion." (Citations omitted; internal quotation marks omitted.)
Violano v. Fernandez, 280 Conn. 310, 318 (2006).
There is an exception to the immunity for discretionary acts when "circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm." Doe v. Petersen, supra, 279 Conn. 616 [quoting Evon v. Andrews, 211 Conn. 501, 505 (1989] . The exception is not applicable to this case. While it seems the plaintiff, or his assignee, could be identified as a victim, there is a dearth of evidence that harm was "imminent" and a similar dearth that any harm was "apparent" to the Town. Therefore the negligence claim is dismissed.
The second count alleges a public or private nuisance. A claim of nuisance has been defined as having four elements: (1) the condition complained of had a natural tendency to create danger and inflict injury on person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; and (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages. Pestey v. Cushman, 259 Conn. 345, 355 (2002). A public nuisance is one which produces a common injury. "The test is not the number of persons annoyed but the possibility of annoyance to the public." Sinotte v. City of Waterbury, 121 Conn.App. 420, 438 (quoting Boyne v. Glastonbury, 110 Conn.App. 591, 606, cert. denied 289 Conn. 947 (2008). The court concludes that this case could be described as involving either a public nuisance or private nuisance since more than the plaintiff might have been affected by the sewage back-up. However, the terminology is not important to the disposition of the case.
Under the common law in Connecticut to hold a municipality liable for nuisance the plaintiff had to prove that the municipality, "by some positive act created the condition constituting the nuisance." Picco v. Town of Voluntown, 295 Conn. 141, 146 (2010) [citing to Wright v. Brown, 167 Conn. 464, 470 (1975] . In Picco the Connecticut Supreme Court held that in a nuisance action brought under General Statutes § 52-557n(a)(l)(C) (municipality may be liable for "acts . . . which constitute the creation or the participation in the creation of a nuisance . . .") also required proof of a positive act by the municipality. Picco v. Town of Voluntown, supra, 295 Conn. 147-152.
The evidence in this case does not establish that a positive act by the Town created the sewer blockage. Santasiero testified he did not know how the grease got to Manhole 204. There is no evidence that the Town put the grease in the sewer. To this court the build up of grease in this case is somewhat akin to the build up of snow and ice in Lukas v. New Haven, 184 Conn. 205 (1981), where the Connecticut Supreme Court held that the failure to remedy a condition, not of its own making was not equivalent to the required positive act. Id. 210; see also Picco v. Town of Voluntown, supra, 295 Conn. 148 (a failure to act is not an act.) Therefore, the plaintiff has not proved his nuisance claim against the Town.
III. Conclusion
For the reasons stated above the court finds the issues in favor of the defendant, and the complaint is dismissed.